ANDERSON v. SUPERIOR COURT (1995)

OPINION

THE CASE

Petitioner was reelected county clerk on June 4, 1994, for a four-year term commencing January 2, 1995.

On October 4, 1994, the superior court judges, by a nine to seven vote, adopted local rule 22 of the Fresno County Superior Court (hereafter Rule 22), under the authority of Government Code 1 section 69898.2  Rule 22 appoints the superior court executive officer to serve as the clerk of the superior court and removes that office from petitioner.   When implemented, Rule 22 will result in two-thirds of the employees and over one-half of the duties of the county clerk being removed from that office and transferred to the superior court.   Nevertheless, petitioner will continue receiving her current salary for the balance of her term.

The reasons for adopting Rule 22, as explained by the superior court presiding judge to the board of supervisors on December 13, 1994, were the “enhancement of [court] efficiency,” and a “fiscal concern” that if the court did not consolidate all of the court clerk's duties under the court's executive officer, it would lose potential funding by the state Trial Court Budget Commission.  (§ 68502.5.)

The board of supervisors received a written opinion from the county counsel that Rule 22 was a lawful exercise of the court's power under section 69898.   It then approved the necessary budget and personnel transfers, effective December 19, 1994.   Rule 22 was to take effect December 30, 1994.

Petitioner filed a petition with this court seeking a temporary stay of the implementation of Rule 22, and requesting the issuance of a writ of mandate declaring respondents' actions to be an abuse of discretion.   Petitioner has also requested an award of attorney fees for prosecuting the petition.   This court stayed implementation of Rule 22 and the enabling budget transfers approved by the board of supervisors, pending a determination of the petition.

BACKGROUND FACTS 3

Over the years, Fresno voters have been presented with county charter amendments pertaining to the county clerk.   In 1974, the voters rejected making the county clerk an appointive office.   During the ensuing years and until petitioner's election as county clerk in 1990, the county clerk's office was the focus of repeated criticism from the county grand jury, the courts, various lawyer groups, the press and the public, regarding the failure of the incumbent county clerk to perform his duties of office, particularly those affecting the superior court.   As a consequence of this widespread public perception of neglect of duties, petitioner and four other candidates ran for the office of county clerk on June 5, 1990.   Petitioner, an attorney, campaigned on a promise to bring reform to the office, especially the performance of the duties involving the superior court.

Two county charter amendments were proposed at the time petitioner ran for county clerk.   Measure A once again proposed to make the county clerk's office appointive rather than elective.   Measure B proposed a separate appointive county officer as the registrar of voters.   Both Measures A and B suffered resounding defeats.

Petitioner received 49.3 percent of the 50 percent majority required for election in the primary.   She won the run-off election on November 6, 1990, by 84 percent of the votes.   There is no dispute that during petitioner's first term she “reformed” the county clerk's office as she had promised to do.   All agree that, to date, petitioner has performed her duties well, including the duties as clerk of the superior court.

DISCUSSION

This case presents a question of first impression:  Following the election of a county clerk to a term of office, does the superior court have the power to transfer all of the county clerk's duties as ex officio clerk of the superior court to the executive officer of the court before the expiration of that term?   We answer the question in the negative.

Our analysis requires consideration of two underlying issues:  (1) whether section 69898 may be construed to authorize transfer of the superior court clerk's duties from petitioner to the executive officer of the superior court during petitioner's term, and (2) if not, whether the superior court has the inherent power as an independent branch of government to order the transfer of these duties during petitioner's term of office.

 Article VI, section 4, of the California Constitution provides “The county clerk is ex officio clerk of the superior court in the county.”  (Emphasis added.)   The county clerk is to be elected by the people, unless the office is made appointive by a measure submitted to and approved by a vote of the people.  (§ 24009.)   There is, however, no separate office of clerk of the superior court;  rather, it is one of the county clerk's official duties to act as clerk of the court.  (Price v. Superior Court (1986) 186 Cal.App.3d 156, 163, 230 Cal.Rptr. 442.)   Therefore, the county clerk must perform the duties required by the Legislature to be performed by the superior court clerk.  (Zumwalt v. Superior Court (1989) 49 Cal.3d 167, 180, 260 Cal.Rptr. 545, 776 P.2d 247.)   Further, the Legislature has the power to transfer these duties from the county clerk to another office.  (Mills v. Sargent (1868) 36 Cal. 379.)

There is little authority concerning when a transfer of superior court clerk duties from the county clerk to another office can lawfully take place.   Early California Supreme Court cases discussing the timing of the transfer of ex officio duties from an elected official to another office are inconsistent.   However, where the court concluded there was no restriction on the time a transfer of duties could take place, the court did not discuss the involvement of the electors.

In Attorney General v. Squires (1859) 14 Cal. 12, the court determined whether an act of the Legislature which transferred the duty of collecting foreign miners' taxes from the county sheriff to an appointed collector of such taxes was constitutional.   The court posed the question, “Is it competent for the Legislature, having vested certain duties in a public officer, for the discharge of which he has given bond, and for whose services compensation is allowed, to take those duties and the fees from the office before the expiration of the term, and confer them upon another officer?”  (14 Cal. at p. 15.)   The court decided the answer to this question was yes, reasoning that “The Sheriff holds the office of Collector of this tax, by virtue of an Act of the Legislature.   His election and qualification as Sheriff, do not give him this office, but the Act of the Legislature, by its sole and express direction, gives it.   The same power that made can destroy, unless, indeed, there be some vested right created by the Act, or some right of property․  The vesting of this office in the Sheriff being by legislative act, though the office cannot be destroyed by the Legislature, yet the Legislature, not restricted in this respect by the Constitution, may direct in what manner the duties shall be discharged, and how the office may be temporarily filled.”  (14 Cal. at p. 17.)   The court further noted “If the Legislature could do away with the tax entirely, after the qualification of the Sheriff, it is difficult to see why they could not change the hands that were to collect it.”  (14 Cal. at p. 18.)

Squires appears to support respondents' position in this case.   However, nine years after Squires was decided, the Supreme Court restricted when such a transfer of duties could take place if the official from whom the duties were to be transferred was an elected official.

In People [ex rel. Rynerson ] v. Kelsey (1868) 34 Cal. 470, the Legislature passed an act which transferred the duty of ex officio tax collector from the county sheriff to the county treasurer after the sheriff had been elected.   The court held that, although the Legislature had the power to repeal the law “devolving the duties of Tax Collector upon the Sheriff, and thereby to deprive the Sheriff of the right to perform the duties of Tax Collector,” (34 Cal. at p. 474) and to transfer the duties to another county officer, such transfer “must precede the election of such officer, so that the electors of the county may have an opportunity under the law of selecting the person or officer charged with the duties of Tax Collector.”  (34 Cal. at p. 475, emphasis added.)   In reaching its decision, the court relied on article VI, section 13 of the state Constitution, as it then read, which provided that assessors and collectors of state, county and town taxes be elected by the qualified electors of the district in which the property to be taxed is situated.   The court concluded, the transfer of duties there involved, “is manifestly in conflict with the spirit and letter of the clause of our State Constitution hereinbefore quoted.”  (34 Cal. at p. 476.)

Thus, the Supreme Court in Kelsey appears to overrule, by implication, the holding of Squires as to the timing of the transfer of duties.  Squires has been cited in later cases for the proposition that “salaried public offices, created by the legislature, are not held by contract or grant.   The legislature has full control over them, unless restricted by the constitution, and may abolish them altogether, or impose upon them new duties or reduce their salaries.”  (Miller v. Kister (1885) 68 Cal. 142, 144, 8 P. 813;  see also (Martello v. Superior Court (1927) 202 Cal. 400, 408, 261 P. 476.)   However, these cases concerned the transfer of duties from the perspective of the official's right to carry out those duties, not from the perspective of the voters.

The Kelsey reasoning was followed in People v. Gunn (1916) 30 Cal.App. 114, 157 P. 619.   Gunn was elected to the offices of county recorder and auditor.   The county supervisors thereafter passed an ordinance separating the duties of the two offices.   Although both the recorder and auditor were elected officials, the supervisors filled the office of auditor by appointment because it was vacant.   The court held that “while the supervisors were acting within the power given them to separate the duties of auditor and recorder, the board had no authority to appoint some person other than the incumbent, or any person for that matter, to fill that office.   Obviously, this must be so, inasmuch as the only mode provided by law to select an auditor is by election by the people.”  (30 Cal.App. at p. 120, 157 P. 619.)   The court rejected the argument that Kelsey was inapplicable.   The fact that when Kelsey was decided the Constitution provided the tax collector should be elected by the people, and in this case, it was the Legislature which determined the auditor was to be elected, did not change the result.  “It is safer and, we think, better that the principle enunciated in the Kelsey case, supra, should be followed, and the choice of the electors remain undisturbed until they may have an opportunity at the next election to fill the offices in accordance with the separation of duties as declared by the supervisors.”   (30 Cal.App. at p. 121, 157 P. 619.)

 We agree with Gunn that it is critical to uphold the choice of the electors.   This conclusion is mandated by the Constitution.  Article II, section 2, of the California Constitution secures the right to vote at all elections to citizens of the state.   The right to vote is fundamental and cannot be abridged by legislation.  “ ‘ “No right is more precious in a free country than that of having a voice in the election” ’ ” process.  (Canaan v. Abdelnour (1985) 40 Cal.3d 703, 714, 221 Cal.Rptr. 468, 710 P.2d 268.)   The court in Canaan went on to state, “ ‘[a] fundamental goal of a democratic society is to attain the free and pure expression of the voters' choice of candidates.   To that end our state and federal Constitutions mandate that the government must, if possible, avoid any feature that might adulterate or, indeed, frustrate, that free and pure choice․’ ”  (40 Cal.3d at p. 716, 221 Cal.Rptr. 468, 710 P.2d 268, emphasis added.)

Although in Kelsey, the Constitution provided for the election of the office at issue, whereas here, a statute provides for such election, the constitutional analysis remains the same.   If the official must be elected, no matter what the source of that requirement, the electors' choice should not be frustrated.

Another distinction between the above cases and the case before us is that, in Kelsey and Gunn, both offices at issue were elective whereas here, it is only the county clerk which is elected.   The superior court executive officer is appointed.   The California Attorney General found this distinction to be critical in 1953 when rendering opinion No. 53–82.  (22 Ops.Cal.Atty.Gen. 177 (1953).)

In opinion No. 53–82, the Attorney General was asked the following question:  “May the office of the Clerk of the Santa Clara Board of Supervisors be segregated from that of the County Clerk during the current election term of the County Clerk, and another person appointed as Clerk of the Santa Clara Board of Supervisors?”  (At p. 177.)   At the time of the county clerk's election, section 25100 provided “Unless otherwise provided by law, the county clerk is ex officio clerk of the board of supervisors of his county.”   The Attorney General stated the application of the principle of Kelsey and Gunn “depends upon whether or not the office of Clerk of the Board of Supervisors was an elective office, so that the separation of the office of Clerk of the Board of Supervisors from that of County Clerk during the current term could be said to be depriving the people of what otherwise was their choice for the office of Clerk of the Board of Supervisors.”  (22 Ops.Cal.Atty.Gen. at p. 179.)   Thus, the Attorney General concluded “Where the office which the elected officer holds ex officio is not an elective one, the legislative body, in this instance the Board of Supervisors, may segregate it during the current term and appoint another person to fill it.   The segregation of the ex officio office in such a case does not deprive the voters of any franchise, which they might otherwise have, to choose the person to fill the ex officio office.”  (Id. at p. 181.)   Respondents rely on this opinion to support their position.

 However, holding the power to transfer ex officio duties during an elected official's term is dependent on whether those duties are transferred to another elected official or to an appointed official is illogical.   Rather, the analysis should focus on the status of the official who held the ex officio position before the transfer.   If that official was elected, he or she was under an obligation to carry out the ex officio duties at issue at the time of the election.  (Zumwalt v. Superior Court, supra, 49 Cal.3d at pp. 179–180, 260 Cal.Rptr. 545, 776 P.2d 247.)   Thus, the voters chose that official, in this case petitioner, to carry out those duties.   Whether the official who is chosen, by executive decision, to take over those duties by way of a transfer was elected or appointed is of no consequence.   Either way, an official was elected by the voters to carry out certain functions during his or her term and it is that choice which should remain undisturbed.   In contrast, where both officials are appointed, the voters have not made a selection of who should perform which duties and thus, a transfer of duties does not infringe on the right of the voters to fill the office.  (See Kelly v. Kane (1939) 34 Cal.App.2d 588, 94 P.2d 384.)

 No one disputes that, in general, the Legislature has the power to change the law regarding the duties of government officials at any time.   “ ‘What the Legislature has given, the Legislature can take away.’ ”   (Zumwalt v. Superior Court, supra, 49 Cal.3d at p. 176, 260 Cal.Rptr. 545, 776 P.2d 247.)   However, this power is restricted;  a transfer of duties which deprives an elected official of an ex officio office cannot take place during the official's term of office without impinging on the electorate's right to vote.

This conclusion is in line with the dicta in Beck v. County of Santa Clara (1988) 204 Cal.App.3d 789, 251 Cal.Rptr. 444, upon which petitioner relies.   In Beck, the voters ratified the transfer of function away from the official whom they elected.   Consequently, the court found there was no “infringement of electoral power such as was forbidden by Kelsey.”  (Id. at p. 795, 251 Cal.Rptr. 444.)   Nevertheless, the court discussed the infringement of electoral power issue and stated “once the electorate has voted for a public officer, having in mind that he will perform a particular bundle of duties, then it would impermissibly negate that exercise of elective choice to take those duties from the official and give them to one not elected to perform them.”  Kelsey protects not the incumbent's right to perform specific duties, but the voters' exercise of power at the election.  “Nothing in Kelsey contradicts the great weight of precedent holding that an elected official such as Sheriff Winter here has no personal vested right to the performance of his duties, separate from the rights of the people who elected him.”  (Beck v. County of Santa Clara, supra, 204 Cal.App.3d at p. 794, 251 Cal.Rptr. 444.)

 In the present case, the voters chose petitioner to be the county clerk for a four-year term commencing January 2, 1995.   Implicit in this choice was the voters' assumption petitioner would perform the basic duties of her office, especially the function of ex officio clerk of the superior court.   We do not find petitioner was elected ex officio clerk of the superior court.   It is not an elected position.   What we do find is that because petitioner was elected county clerk, she was elected to carry out the ex officio duties of the clerk of the superior court.   Thus, the superior court's attempt to eliminate petitioner's ex officio position during her term of office goes against the Constitution.   If permitted, it would “adulterate [and], indeed, frustrate, that free and pure choice” of the voters in selecting petitioner to be county clerk.  (Canaan v. Abdelnour, supra, 40 Cal.3d at p. 716, 221 Cal.Rptr. 468, 710 P.2d 268.)

We hold, therefore, that because the Legislature is subject to the Constitution, it would not have had the power to transfer the superior court clerk duties from petitioner to the superior court executive officer during petitioner's term.   Since the Legislature cannot delegate a power it does not itself have, it could not give such a power to the superior court through the enactment of a statute.   Consequently, the superior court did not have the authority under section 69898 to accomplish the transfer by Rule 22.

Our holding does not conflict with Zumwalt v. Superior Court, supra, 49 Cal.3d 167, 260 Cal.Rptr. 545, 776 P.2d 247.   We do not question that section 69898 is constitutional.   However, the power granted to the superior court under the statute must be exercised in a constitutional manner.   We can interpret the statute to meet this requirement.

 A statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more different senses.   (Ervin v. City of Kenosha (1991) 159 Wis.2d 464, 464 N.W.2d 654, 657–658.)   Here, section 69898 is silent as to the timing of the transfer of duties from the county clerk to the executive officer of the court.   Consequently, the statute is uncertain and requires interpretation.   The judiciary is the only body with the power to interpret a statute in the context of the Constitution.  (7 Witkin, Summary of Cal.Law (9th ed. 1990) Constitutional Law, § 92, p. 145.)

The uncertainty in section 69898 is most likely caused by the fact the Legislature did not consider the issue;  the impact on the rights of the electorate when the county clerk's ex officio duties are taken away during the term of office, simply never occurred to the Legislature when it passed the statute.   If the Legislature had thought of the issue, it undoubtedly would have made its statutory intent clear.⁴

 The Legislature is presumed both to know the existing constitutional, statutory and appellate law on the subject on which it legislates and to intend the statute enacted to comply with that law.   (Walters v. Weed (1988) 45 Cal.3d 1, 10–11, 246 Cal.Rptr. 5, 752 P.2d 443.)   Thus, where a constitutional right is involved, such as the right to vote, the court must presume the Legislature was aware of prior judicial decisions which examined the right.  (Ibid.)  Further, when a statute is subject to two interpretations, it will be construed, if possible, in a manner consistent with the Constitution.  (7 Witkin, Summary of Cal.Law (9th ed. 1990) Constitutional Law, § 95, pp. 148–149.)   This can be done here only if we reject respondents' argument as to the meaning of the statute.

 Another rule of statutory interpretation also applies in the analysis of the meaning of section 69898.   We are to presume the Legislature intended the statute to receive a common-sense interpretation consistent with its apparent purpose, and which upon application, results in a wise policy rather than mischief or absurdity.  (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18, 194 Cal.Rptr. 722.)

Here, even though the implementation of Rule 22 would eliminate two-thirds of petitioner's employees and over one-half of the duties of the office, petitioner's full salary as county clerk would continue unabated for the remainder of her term.   This salary was set by the board of supervisors commensurate with the value to the county of the services to be rendered by petitioner, which services primarily consisted of functioning as the clerk of the superior court.   Yet, under the county charter, this salary cannot be lowered with the reduction of petitioner's duties.   Members of the board of supervisors expressed concern over this result and also questioned the need for additional administrators to be hired by the superior court.   We find it difficult to believe, as apparently did some of the board members, that the implementation of Rule 22 would result in a wise fiscal and budgetary policy rather than mischief and absurdity.

For the reasons stated, we construe section 69898 to mean the superior court may not terminate the county clerk's position as ex officio clerk of the superior court during the county clerk's term of office.

Respondents argue, and our dissenting colleague agrees, that, under the maxim “all are presumed to know the law” (Tillson v. Ford (1879) 53 Cal. 701, 706), the electorate must be deemed to have known of the superior court's right under section 69898 to terminate petitioner's ex officio duties when they elected her to the office.   We doubt a general presumption of the law can be applied to deprive the electorate of a basic constitutional right.  (Cf. People [ex rel. Coe] v. City of Los Angeles (1921) 187 Cal. 56, 200 P. 947.)   However, even if the presumption is applied, the argument defeats itself.   The electorate would also be presumed to know of the statute's uncertainty in the timing of the transfer of the county clerk's ex officio duties and the Kelsey, Gunn, and Beck restrictions on transferring the duties during the elected official's term of office.   Therefore, under the presumption, the electorate was entitled to assume petitioner would continue as ex officio clerk of the superior court during the term to which she was elected.

 We turn now to the second aspect of our analysis.   Respondents argue that, assuming the transfer of the duties during petitioner's term is not defensible under section 69898, the transfer nevertheless may be upheld under the doctrines of “separation of powers and inherent judicial power.”

Respondents rely on a decision of this court, Price v. Superior Court, supra, 186 Cal.App.3d at pages 166–173, 230 Cal.Rptr. 442 (disapproved on another ground in Zumwalt v. Superior Court, supra, 49 Cal.3d at p. 180, fn., 16, 260 Cal.Rptr. 545, 776 P.2d 247), for the proposition the superior court, as an independent branch of government, has the power to order this transfer of duties.  Price held the superior court's inherent judicial power to run its own business (Cal. Const., art. III, § 3;  art. VI, § 1) permitted it to transfer four clerks from the county clerk's office to the superior court's administrative staff.

 Price is not in point for two reasons.   First, there is no indication in the opinion as to the timing of the transfer with respect to the expiration of the county clerk's term of office.   Consequently, the opinion did not discuss or decide whether such a transfer could take place during the county clerk's elected term of office.   Thus, the decision is not legal precedent for the proposition asserted by respondents.   Appellate decisions stand only for the questions presented and the reasoning of the court in answering the questions, i.e., the ratio decidendi of the decision.

 Another distinction between Price and the case before us, is that our decision is grounded on the right of the people to have the person elected perform the duties of the office as specified at the time of the election.   This right is fundamental and of sufficient magnitude as to warrant constitutional protection.  (Cf. Canaan v. Abdelnour, supra, 40 Cal.3d at pp. 714–715, 221 Cal.Rptr. 468, 710 P.2d 268.)   The inherent power of the courts to conduct their assigned business is subject to constitutional restrictions.  (Price v. Superior Court, supra, 186 Cal.App.3d at p. 168, 230 Cal.Rptr. 442.)   The constitutional right of the people, being supreme to the power of the judicial branch of the government, causes respondents' judicial power argument to fail.

Respondents next argue the Judicial Council rules for trial court consolidation and coordination authorize the implementation of Rule 22 as approved by the board of supervisors.   Under these rules, a point scheme has been adopted wherein counties compete for state trial court funding based on how high they score in categories of trial court coordination and consolidation.   One means of achieving points is by adopting a local superior court rule under section 69898 for the transfer of court related duties to the court's executive officer, as in this case.   If this is done, the superior court apparently receives 80 points on a scale of 1,500 points for funding.   Respondents then argue, “These Judicial Council rules further legitimize the transfer of duties during Petitioner's term of office.   If the transfer is delayed for the next four years, the Respondents could lose state trial court funding.”   The argument is without merit.

The California Judicial Council is a constitutionally created body.  (Cal. Const., art. VI, § 6;  see Fay v. District Court of Appeal (1927) 200 Cal. 522, 526, 254 P. 896.)   The amendment specifies the principal functions of the council, and adds the catch-all provision, “other functions prescribed by statute.”

The council's principal functions are “[t]o improve the administration of justice” by surveying judicial business, making recommendations to the courts, and annual recommendations to the Governor and Legislature.  (Cal. Const., art. VI, § 6.)   Judges must report to the council “as the Chief Justice directs”, and the judges must “cooperate with the council.”   The same duty to cooperate is imposed by statute on all courts.  (§ 68505.)

Thus, while the judicial council may be a constitutionally created body, its very purpose and reason for existing is to serve the three branches of government in an administrative and ministerial capacity.   This being so, the council, like the branches of government, must be deemed subservient to the rights of the people.   These rights cannot be abridged by rules pertaining to consolidation and coordination of the courts and their administrative staffs.

ATTORNEY FEES

 Petitioner contends the county is required to reimburse her for the attorney fees she expended in bringing this petition.   The county argues petitioner has no right to attorney fees because she is “suing not in her capacity as a ‘county officer’ but rather in her capacity as ‘ex officio clerk of the superior court,’ which is not a ‘county office.’ ”

Section 26529 provides “The county counsel shall defend or prosecute all civil actions and proceedings in which the county or any of its officers is concerned or is a party in his or her official capacity.”   The county acknowledges that “the ex officio clerk is not a ‘separate office,’ ” but argues that because the position “clearly involves separate ‘court related duties' performed for the superior court which is vested with state judicial power” petitioner is not suing in her official capacity.   However, as noted in Zumwalt v. Superior Court, supra, “By mandating that the county clerk shall be ex officio the clerk of the superior court, section 4 of article VI places an obligation on the official who occupies the office of county clerk to do that which the Legislature commands.”  (49 Cal.3d at pp. 179–180, 260 Cal.Rptr. 545, 776 P.2d 247.)

At the time petitioner was elected county clerk, it was her obligation to act as ex officio clerk of the superior court.   Thus, in seeking to retain the duties which she had been, and argues she still is, obligated to perform, petitioner is suing in her official capacity.   Thus, petitioner should be reimbursed for attorney fees in an amount to be determined by the trial court, regardless of the outcome of the suit.

DISPOSITION

Let a writ of mandate issue commanding the superior court to vacate Rule 22, and to allow petitioner reasonable attorneys fees.

Petitioner to recover her costs of suit.

I dissent.

The majority construes Government Code section 69898, subdivision (d) ¹ to mean the superior court may not terminate the county clerk's position as ex officio clerk of the superior court during the county clerk's term of office.   It follows, in the majority's view, that this restriction relates back to the date of the county clerk's election, in the instant case, June 4, 1994, for a term commencing January 2, 1995.   This is so, in the majority's view, because on June 4, 1994, the voters of Fresno County voted for Ms. Anderson for county clerk and duly elected her to that office in reliance upon the fact that during her term of office she would perform certain enumerated “duties” which included acting as ex officio clerk of the superior court.

The majority further rejects a 1953 California Attorney General opinion, opinion No. 53–82 (22 Ops. Cal. Atty. Gen. 177 (1953)), which reaches a contrary conclusion and is relied on by respondents in the instant case, and ultimately concludes the Legislature does not have the power to authorize the transfer of the superior court clerk duties from petitioner here to the superior court executive officer during petitioner's term.   As the argument goes, since the voters elected the official (the county clerk) to carry out certain duties, that choice should remain undisturbed.

As I will explain, were the facts different here, more in keeping with the facts in Kelsey and related cases upon which the majority relies, I would agree.   If, in the instant case, our Legislature passed into law section 69898 during a term of Ms. Anderson's office as county clerk, and during that same term the Fresno County Superior Court adopted a local rule under the authority of that section appointing the superior court executive officer to serve as the clerk of the superior court for the balance of that same term and thereby remove the office of ex officio county clerk from petitioner, I would conclude the Legislature and/or the superior court had exceeded its authority, that such action, all during a term of office of the county clerk, constituted an ex post facto and unconstitutional application of section 69898.   This, of course, is not what happened in the instant case.

Here, the Fresno County Superior Court adopted local rule, Rule 22, to take effect on December 30, 1994.   This action conformed to the provisions of section 69898, which section was duly adopted by the California Legislature and became effective on January 1, 1977.   Thus, section 69898 had been the law in this state for approximately 17 years, without material change, at the time the superior court adopted local rule, Rule 22.   The majority concludes:  “We do not question that section 69898 is constitutional.   However, the power granted to the superior court under the statute must be exercised in a constitutional manner.”   In the majority's view, the failure of section 69898 to set out a schedule as to the timing for the transfer of duties from the county clerk to the executive officer of the court constitutes an ambiguity to be resolved by interpretation by the judiciary, i.e., us.   The majority then, by interpretation, concludes the operative date for exercise by the superior court of its options under section 69898 is prior to the election of the county clerk to the term during which the superior court elects to have its executive officer take over the duties of the clerk of the superior court.

However, it seems to me, not only is this resolution of the supposed “ambiguity” itself ambiguous and nebulous, I cannot believe such was the intent of the Legislature in drafting the section.

The majority concludes notice of action pursuant to section 69898 by the superior court must occur prior to election day for the term of the county clerk during which the court executive officer will assume the clerk of the court's duties.   Presumably, this intended action must also be made known to the electorate in advance of election day, so they, the voters, will be appraised that the person for whom they vote for county clerk may not perform the duties of ex officio clerk of the superior court for some, or maybe all, of the ensuing term.   Of course, the superior court may, or may not, change its mind about exercising its section 69898 options, so this scenario may, or may not, come about.   If, after what the majority deems proper notice, the superior court fails to act, changes its mind, what then?   Must there be a new election since the county clerk will continue to act as ex officio clerk of the superior court, contrary to the electors' expectations?

Moreover, if, as the majority opinion concludes, this “notice to the electorate” must be given before the election, the question is—how long before the election?   As we know, election of the county clerk may occur in the month of November of the year preceding the commencement of the term of office or as early as June of that year assuming one candidate receives at least 50 percent plus 1 of all votes cast for the office.

But what is reasonable notice to the electorate before election day?   Thirty days, sixty days, three months, longer?   I do not equate the office of County Clerk of Fresno County with the presidency, the Congress or statewide office such as Governor, etc., nor, I presume, does Ms. Anderson.   However, we do know that following the congressional elections in November 1994, several Republican senators, and others, have already declared their candidacy for their party's nomination for the presidency in 1996, and are actively raising funds and establishing election committees to further their prospective campaigns.   Now you will say, and I agree, “get real,” we are only talking about electing a person clerk of Fresno County.   Still, pursuing the majority view, the question remains, how much notice by the superior court, preceding election, is required?   In 1990, when Ms. Anderson was first elected, as the majority notes, there was a total of five candidates for the office of county clerk and serious campaigning started at least three or four months preceding the primary election.

Again, it seems to me this scenario cannot have been intended by the Legislature, although we have no specific direction from them in this regard.   Rather, I submit, the Legislature, contrary to the majority's surmise, did consider the question before us and so framed section 69898 as to provide that the statute's provisions could be exercised by any superior court in this state at any time from and after the commencement by any county clerk of a new term beginning after January 1, 1977.   Each county clerk would have run for and, if successful, taken office with actual or constructive notice of the provisions of section 69898 and its possible effect upon them during their term of office, as would each voter who, like county clerks and all the rest of us, are presumed to know the law.

The majority opinion gives this argument short shrift, stating:

“Respondents argue, and our dissenting colleague agrees, that, under the maxim ‘all are presumed to know the law’ (Tillson v. Ford (1879) 53 Cal. 701, 706), the electorate must be deemed to have known of the superior court's right under section 69898 to terminate petitioner's ex officio duties when they elected her to the office.   We doubt a general presumption of the law can be applied to deprive the electorate of a basic constitutional right.  (Cf. People v. City of Los Angeles (1921) 187 Cal. 56 [200 P. 947].)   However, even if the presumption is applied, the argument defeats itself.   The electorate would also be presumed to know of the statute's uncertainty in the timing of the transfer of the county clerk's ex officio duties and the Kelsey, Gunn, and Beck restrictions on transferring the duties during the elected official's term of office.   Therefore, under the presumption, the electorate was entitled to assume petitioner would continue as ex officio clerk of the superior court during the term to which she was elected.”  (Majority opn. p. 898.)

I fail to see how citing cases such as Kelsey, Gunn and Beck, which are neither on point nor analogous to the factual situation presented here, renders redundant an argument premised upon a basic elementary legal principal, application of which simply and logically resolves a problem which the majority views as a grave dilemma.

I reach my conclusion in this matter without particular concern whether or not Ms. Anderson is doing a good job as Fresno County Clerk (I am sure she is) nor whether or not the implementation of Rule 22 would result in a wise fiscal and budgetary policy.   Those are questions for others to decide.

Thus, I would conclude the Fresno County Superior Court acted both properly and effectively in adopting Rule 22, under the authority of section 69898, and Ms. Anderson's petition for writ of mandate is meritless and should be rejected.²

FOOTNOTES

FOOTNOTE.  

FN1. All statutory references are to the Government Code unless otherwise indicated..  FN1. All statutory references are to the Government Code unless otherwise indicated.

FN2. Section 69898, subdivision (d) provides, “Notwithstanding any other provision of law, a superior court having an executive or administrative officer may, by local rule, specify which of the powers, duties and responsibilities required or permitted to be exercised or performed by the county clerk in connection with judicial actions, proceedings and records shall be exercised or performed by the executive or administrative officer.   The county clerk shall be relieved of any obligation imposed on him [or her] by law with respect to these specified powers, duties and responsibilities, to the extent the local rule imposes on the executive or administrative officer the same powers, duties and responsibilities.”.  FN2. Section 69898, subdivision (d) provides, “Notwithstanding any other provision of law, a superior court having an executive or administrative officer may, by local rule, specify which of the powers, duties and responsibilities required or permitted to be exercised or performed by the county clerk in connection with judicial actions, proceedings and records shall be exercised or performed by the executive or administrative officer.   The county clerk shall be relieved of any obligation imposed on him [or her] by law with respect to these specified powers, duties and responsibilities, to the extent the local rule imposes on the executive or administrative officer the same powers, duties and responsibilities.”

3.   These facts are not germane to the issue of the power of the superior court to enact and to implement Rule 22.   They merely emphasize the importance of the electorate's right in this case.

4.   Almost 100 years ago, John Chipman Gray, a highly respected scholar of American jurisprudence, wrote a revealing and enduring explanation of the intellectual process used by judges to ascertain legislative intent behind an uncertain statute:  “A fundamental misconception prevails and pervades all the books as to the dealing of the courts with statutes.   Interpretation is generally spoken of as if its chief function was to discover what the meaning of the Legislature really was.   But when a Legislature has had a real intention, one way or another, on a point, it is not once in a hundred times that any doubt arises as to what its intention was.   If that were all that a judge had to do with a statute, interpretation of statutes, instead of being one of the most difficult of a judge's duties, would be extremely easy.   The fact is that the difficulties of so-called interpretation arise when the Legislature has had no meaning at all;  when the question which is raised on the statute never occurred to it;  when what the judges have to do is, not to determine what the Legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present․ and that when the judges are professing to declare what the Legislature meant, they are in truth, themselves legislating to fill up the casus omissi.”  (Gray, THE NATURE AND SOURCES OF THE LAW (2d ed. 1921) pp. 172–173, fn. omitted, emphasis added.)

1.   Government Code section 69898, subdivision (d) (hereinafter referred to as section 69898) is set forth in its entirety at footnote 1 of the majority opinion.

2.   In view of the conclusions above, I need not address respondents' “separation of powers and inherent judicial power” discussion.   Moreover, if I were to address this issue, I would agree fully with the majority view on this point, as I would on the issue of reimbursement of petitioner for attorney fees she has expended in bringing this petition.

FRANSON, Associate Justice.* FN* Retired Presiding Justice of the Court of Appeal, Fifth District, sitting under assignment by the Chairperson of the Judicial Council.

ARDAIZ, P.J., concurs.